Northern Territory of Australia v Fejo and Ors

[1998] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 1998

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

JIM FEJO and DAVID  MILLS on behalf of the LARRAKIA PEOPLE

First Respondent

OILNET (NT) PTY LTD

Second Respondent

AND

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

JIM FEJO and DAVID  MILLS on behalf of the LARRAKIA PEOPLE

Respondent

Application for removal pursuant to section 40(2) of the Judiciary Act 1903

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 MAY 1998, AT 3.49 PM

Copyright in the High Court of Australia

_______________________

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:   May it please the Court, I appear for the applicant for removal in each case.  (instructed by the Solicitor for the Northern Territory)

MR J. BASTEN, QC:   May it please the Court, I appear for Fejo in each case.  (instructed by the Northern Land Council)

MR H.C. BURMESTER, Acting Solicitor‑General for the Commonwealth:   If it please the Court, I appear with MR G.J. LOUGHTON for the Commonwealth Special Minister of State seeking leave to intervene in these proceedings to support the application.  (instructed by Australian Government Solicitor)

GAUDRON J:   At this stage?

MR BURMESTER:   At this stage, your Honour.

GAUDRON J:   Is it opposed?

MR PAULING:   No, your Honour.

GAUDRON J:   Mr Basten, is the Commonwealth’s application ‑ ‑ ‑

MR BASTEN:   No, your Honour.

GAUDRON J:   Who is the intervener?

MR BURMESTER:   The Special Minister of State, your Honour, that is on the basis that the Special Minister of State is responsible for the administration of the Native Title Act.

GAUDRON J:   We used to be engraced with the presence of the Attorney‑General in matters of moment.

MR BURMESTER:   Your Honour, we say that the principle is no different, that in ‑ ‑ ‑

GAUDRON J:   You may, but he is not an interested person in any direct sense.  If you are applying on behalf of the Commonwealth, that may be one thing.

MR BURMESTER:   Your Honour, at present I am applying on behalf of the Special Minister of State.  We say the interest in the administration of the legislation gives him an interest which is equivalent to that of Attorneys‑General who have intervened to put similar arguments.

GAUDRON J:   That may be so, Mr Burmester, but we are used to having legal submissions put to this Court on behalf of the Commonwealth or by the Attorney-General.

MR BURMESTER:   Yes, your Honour, there had been a number of ‑ ‑ ‑

GAUDRON J:   This is not a matter of no moment.  One understands that submissions on behalf of the Commonwealth are made on behalf of the entire government and one understands that when an Attorney-General appears that by and large he is appearing in his capacity as first law officer for the government.

MR BURMESTER:   Your Honour, in a number of Federal Court matters the Minister for Aboriginal Affairs has been granted leave to intervene and we submit that in this matter now that the Minister of State is responsible for the Native Title Act ‑ ‑ ‑

GUMMOW J:   Why is not the Attorney-General here?

MR BURMESTER:   Your Honour, it was decided that as the Minister of State was the Minister with ‑ ‑ ‑

GUMMOW J:   Decided by whom?

MR BURMESTER:    ‑ ‑ ‑day to day responsibility for the Act it would be better for instructions as to the position to be put to come from that Minister as the responsible Minister rather than from the Attorney-General.

GAUDRON J:   And decided by whom was the question Justice Gummow asked?

MR BURMESTER:   Within the Commonwealth Government, that the appropriate person to speak and to determine the submissions to be put on behalf of the Commonwealth was the responsible minister.

GAUDRON J:   The majority view is that your application should be deferred until we have heard from the parties, Mr Burmester.

MR BURMESTER:   Thank your Honour.

GAUDRON J:   You will have gathered from what we have said that the critical position is not the intervention as such, but the party that seeks to intervene.

MR BURMESTER:   I understand that and I will seek further instructions, your Honour.  Thank you.

GAUDRON J:   Before proceeding to that, Mr Solicitor, I should indicate that the Senior Registrar certifies that she holds a letter from Messrs Cridlands, solicitors for Oilnet (NT) Pty Ltd, the second respondent in this application, advising that the second respondent will abide by the decision of the Court in the application, save as to costs.

MR PAULING:   If the Court pleases.  At the heart of the matter is a land grant made your Honours in 1882 which is reproduced at page 38 of the ‑ ‑ ‑

GUMMOW J:   That was a land grant from the State in fee simple, was it not?

MR PAULING:   Yes, it was.  Because one needs to be optically advantaged to be able to read the documents in the book, can I hand up full size documents.  They have been circulated to all the parties.

GAUDRON J:   You filed supplementary notice of appeal?

MR PAULING:   No, the respondents filed a supplementary notice of appeal, your Honour.

GAUDRON J:   Yes.

MR PAULING:   I filed some submissions in relation to those, if the Court were to entertain them.  The important thing to notice in relation to the land grant in this matter is firstly that it is a grant “for ever” - it is about the middle of the page - and secondly, that there are no reservations at all.  Granted with it was all the “Timber, Minerals and Appurtenances”.so that it is as complete a grant as is possible to be made in law by the Sovereign and, in those circumstances, an extremely appropriate vehicle.

GAUDRON J:   Before you say that, was there some special magic in the words “heirs and assigns forever” under the South Australian law as it then was?

MR PAULING:   Not to my knowledge, your Honour.

GAUDRON J:   Because it does not express itself to be a grant of an estate in fee simple, does it?

GUMMOW J:   That is what is worrying me now, if one looks at it.

MR PAULING:   It is an unlimited grant forever.

GAUDRON J:   Under what statute?

MR PAULING:   This is the South Australian statute, your Honour.

GAUDRON J:   What does it provide?  What did it provide?

GUMMOW J:   It does not identify an estate in land.  It is as simple as that.

MR PAULING:   Sorry; I will get the South Australian statute and read the section.  It was put before his Honour the trial ‑ ‑ ‑ 

GUMMOW J:   It identifies a time but it does not really identify an estate.

MR PAULING:   The particular statute is the Northern Territory Land Act 1872.  The section is section 8:

Subject to the provisions of this Act, the Governor, in the name and on behalf of Her Majesty, may grant in fee simple, or for any less estate or interest, to the purchaser thereof, any waste lands, which grants shall be in such forms as shall from time to time be deemed expedient by the Governor in Council, and shall be signed by the Governor, and sealed with the public seal of the said Province, and being so signed and sealed, shall be valid and effectual in law to transfer to and vest in any such purchaser any such lands as aforesaid so purchased by him.

GAUDRON J:   Well, what is it?  What is the estate?

MR PAULING:   In my respectful submission, the estate is a grant in fee simple.  Even though it does not say so, the ‑ ‑ ‑ 

GUMMOW J:   You have to say that a grant in terms expressed to be forever would be treated as a grant in fee simple?

MR PAULING:   Yes.  That has not been a matter of contention.

GAUDRON J:   In the old conveyancing form what estate was conveyed by the words “heirs and assigns”?

MR PAULING:   I cannot answer that question.

GAUDRON J:   It is a matter of some importance, Mr Solicitor.

MR PAULING:   Yes, it is a matter that has not previously been raised in these proceedings.

GUMMOW J:   Maybe it should have been, but it is now.

MR PAULING:   Indeed, his Honour the trial judge found as a matter of fact, for the purpose of the proceedings, that the grant was for an estate in fee simple, or freehold.

GAUDRON J:   Did a certificate of title ever issue under any land registration system of law?

MR PAULING:   It was certainly lodged in the register book.  That is memorialised in the top right‑hand corner of the land grant.

GAUDRON J:   Yes, and then what happened?

KIRBY J:   Is it expressed in terms of its estate in the certificate of title?

MR PAULING:   We did not have a certificate of title produced in the proceedings. 

KIRBY J:   If this issue is to be tendered to the Court it would be desirable that it be tendered in a matter where there was no contest and no possibility of contest on a question so fundamental as whether the estate in question is one of fee simple.

MR PAULING:   It certainly would, your Honour, but ‑ ‑ ‑

KIRBY J:   You say that until now no one has contested this, but when we are shown the land grant it does not in terms refer to the quality of the estate.  The question is whether or not those words “heirs and assigns forever” in the conveyancing parlance of the 19th century, read against the background of the Northern Territory Land Act of the 19th century, is sufficient to indicate, and it is not in contest, that the title that is granted is a fee simple estate.

GAUDRON J:   One alternative, though, might be that the land grant is simply invalid.

MR PAULING:   As not conveying an estate or interest?

GAUDRON J:   Because if there is an estate or interest conveyed it has to come from those words “heirs and assigns forever” and we have to know what, if any, estate they conveyed.

KIRBY J:   Is it not relevant to the suitability of this as a vehicle to bring up to this Court a question that you want to have removed here?

MR PAULING:   I cannot argue with that proposition, your Honour.  Perhaps while others frantically try and sort out whether there is a ready answer to what those words might mean in terms of the quality of the estate conveyed, may I deal with the other matters relevant to the importance of the issue and ‑ ‑ ‑

GAUDRON J:   Mr Solicitor, is there any issue of importance if it is not an estate in fee simple?

MR PAULING:   No, your Honour. 

GAUDRON J:   That is the fundamental point, is it not?

MR PAULING:   Yes, it is.

KIRBY J:   Justice Glass once said to me, Mr Pauling, “We work with imperfect materials.”  It does appear that you have brought and placed before us an imperfect material.  Unless you can demonstrate that it is good, on its face, it does not say in fee simple.

MR PAULING:   It does not.

KIRBY J:   We are sorry that we have raised this question with you, but it is our duty and, to a small extent, a little pleasure.

MR PAULING:   Yes, thank you, your Honour.  It may be, your Honour, that rather than ending at this point, in the event that there is an answer, an easy answer, and a complete answer to the question, that we might possibly have an opportunity to come back on the point, but taking what your Honour Justice Gaudron put and turning it the other way, yes, the existence of a grant of fee simple is fundamental to the issue to be raised but I do not think it is open to argument that, assuming I can answer the question about the grant, that the matter is of great moment for all of Australia in relation to native title implications and grants, either present or past, of freehold  but would your Honours like me to address that point?

GAUDRON J:   No.  But can I be clear about this?  The fundamental point is the existence or otherwise of native title in respect of land which is the subject of a grant of an estate in fee simple, is it not?

MR PAULING:   That is.

GAUDRON J:   And really, that is the only question, I should have thought, that should concern this Court if the matter were to be removed. 

MR PAULING:   I must say that the second question:  whether the mere lodgement and registration of a native title claim has the effects for which the respondents contend, namely, to stop governments from administering land otherwise than through the future Act provisions of the Native Title Act or to deprive Federal Courts of jurisdiction to determine matters in respect of any such land other than through the processes of the Native Title Act are both important issues.

GAUDRON J:   Yes, but that latter question is one on which it could not be said that it would not benefit from the advantage of consideration by another court.  You see, you are seeking the removal of something at a point where there has been first instance consideration only.  As we have already found, in relation to the primary issue, it is not entirely clear what we are dealing with.  When it came to the second matter, the potential for lack of clarity suggests that it might well be better if that issue were determined by the Full Court and, if necessary, thereafter there could be some application.

MR PAULING:   Put that way, your Honour, it is a proposition difficult to resist.

GUMMOW J:   I think it is a question of half a loaf or no loaf.

MR PAULING:   I suppose that, since the Court has asked me the interesting question regarding the grant, that there is advantage, then, in persuading the Full Court of the Federal Court that what is conveyed by this land grant is, in fact, an estate in fee simple.

KIRBY J:   Unless there may be some very simple answer to the problem by reference to conveyancing practice at the time of this grant.

MR PAULING:   Yes, I appreciate that.

KIRBY J:   I mean, they were very careful about these matters in the 19th century and it seems likely that this would not be a little slip, but you would have to demonstrate it to us because, on its face, it does not refer to the estate.

MR PAULING:   I appreciate what your Honour is saying there.

KIRBY J:   How are we going to handle this now, Mr Solicitor, this problem having been raised?  What do you ask the Court to do?  Is it something that you could sort out in half an hour or short time?

MR PAULING:   I may be able to and I would like the opportunity to try to.

KIRBY J:   I wonder if Mr Basten or even the absent Mr Burmester might be able to cast some light on the matter.

MR PAULING:   I do not know.  I will wait and hear.

GAUDRON J:   Well, perhaps we will hear from Mr Basten on this.  Mr Basten, can you at this stage assist with the first matter?  I note in that regard, however, that your ground 1 of the supplementary notice of appeal is somewhat carefully and accurately drawn to reflect the terms of the grant.  I had thought it was an inaccuracy when I first read it, but what do you say the position is?

MR BASTEN:   Your Honour, we say the position is one which is subject to doubt and the reason for redrafting the question was to indicate an intention to argue that the terms of the South Australian/Northern Territory Land Ac,t together with the terms of the proclamation establishing the colony, might not mean that this grant was the same as a grant of an estate in fee simple as understood at common law generally.

KIRBY J:   That seems unlikely, (a) because of the high care that was taken by conveyances at the time; (b) the terms of the Land Act itself that talk of grants in fee simple; and (c) the signatory or at least the initialling of the land grant by the Governor of the State.  The indicia appear to favour a grant in fee simple because otherwise the Governor was performing a nullity, but on its face it does not say so and that is very relevant, of course, to the removal question because if there are doubts on what has been done one would normally have those sorts of doubts sorted out at trial before we are troubled with them.

MR BASTEN:   Your Honour, we would think that this is a matter which should be dealt with by the Full Federal Court, in part because we say this matter might not ever reach this Court and there obviously are concerns both as to the generality of the application of the argument Mr Pauling puts and as to its application in the terms of this specific grant.  We would think those were matters which were not properly brought directly to this Court.

GAUDRON J:   Well, if it were clear, though, that this were a grant in fee simple, ground 1 in your supplementary notice of appeal would, would it not, seem to raise a matter that might appropriately be dealt with by this Court, it being a fairly short and clear question of law?

MR BASTEN:   It would, your Honour, were it not for the fact that there is a separate argument as to the application of the Native Title Act, which we say precludes this matter being determined by the trial judge in this manner, and the question as to the jury- - -

GAUDRON J:   Did you raise the question of jurisdiction before the trial judge?

MR BASTEN:   Yes, your Honour.  Indeed- - -

GAUDRON J:   But you were the applicant, were you not?

MR BASTEN:   We were the applicant for interlocutory relief, your Honour, and, at that stage, the question of jurisdiction arose through the argument by the Territory that the trial judge “did not have jurisdiction” to grant a determination as to native title.  That appears at page 80 of the appeal papers from his Honour’s judgment at line 5.  What his Honour then held was that he had jurisdiction to grant an order dependent upon a determination that native title did not exist.

There was a real issue before the trial judge, although the issues perhaps were not raised in quite the form that we would wish them to be agitated now.  Our principal argument- - -

GUMMOW J:   The Federal Court had jurisdiction under section 39B, which is now drawn in subsection (1A) extremely widely, and that carries with it an accrued jurisdiction.  It also carries with it jurisdiction under section 32 of the Federal Court Act, with respect of other federal jurisdiction, so what is this debate about jurisdiction all about, apart from ‑ ‑ ‑

MR BASTEN:   The debate about jurisdiction in relation to the grant of final relief as to the grant of relief to protect the subject matter of the native title claim turned on the application of section 213 of the Native Title Act, and that was not a matter which, I think, was fully argued before his Honour, but, as I recall it, Mr Pauling, the Solicitor’s principal position was that the application should be struck out because the court had no jurisdiction to grant the declaratory relief in relation to native title and therefore could not grant relief by way of injunction to protect that interest, pending determination of the matter.

Your Honour, the question is whether, in the circumstances of this Act, section 213(1) imposes upon the jurisdiction of the Federal Court a constraint, namely that matters be dealt with pursuant to the terms of the Native Title Act, which would be, as it were, inconsistent with the broad jurisdiction granted under section 39B(1A).

GAUDRON J:   Well, where do you say that inconsistency lies?

MR BASTEN:   Your Honour, the power to grant a determination in relation to native title is granted to the Federal Court in circumstances where there has been a claim made by way of application to the Native Title Tribunal which the registrar has lodged with the court pursuant to section 74, and in relation to subsection 213(2) where the Federal Court is given “jurisdiction in relation to matters arising under this Act”, the qualification that it be “Subject to this Act” imports the qualification and restraint that the matter come from the tribunal via section 74 of the Act.

GAUDRON J:   But how can you raise this point really when you invoked the jurisdiction?

MR BASTEN:   We invoked the jurisdiction in the application, your Honour.  In the course of the hearing we were happy to rely upon the fact that the court had, as his Honour referred to in a number of cases, granted injunctive relief or accepted that it had power to grant injunctive relief to protect the subject matter in relation to a claim arising under the Act without necessarily going to the length of making a determination as to the ‑ ‑ ‑

GAUDRON J:   Would it not also have jurisdiction to prevent an excess of jurisdiction by the tribunal?

MR BASTEN:   It would if that relief were sought from it, your Honour.  There was no ‑ ‑ ‑

GAUDRON J:   Well, is that not the substance of the relief sought by the Northern Territory in relation to this particular ‑ ‑ ‑

MR BASTEN:   Well, the tribunal was not a party - I beg your Honour’s pardon.

GAUDRON J:   No, go on.

MR BASTEN:   That the tribunal was not a party to the application and no application was made to set aside the acceptance of the claim by the tribunal, and its entry on the register, so that we would submit that the claimants thereby obtain statutory rights under the terms of the Native Title Act and, in particular, under the provisions of Subdivision B of Division 3 of Part 2 which were the sort of rights which were considered in the Waanyi Case as being rights which would enable them to resist a determination as to the substantive issues until negotiation had taken place within the terms of the tribunal’s jurisdiction and authority.  We say that that results directly from an application of what this Court said in North Ganalanja at page 616.

GAUDRON J:   Does your proposed appeal to the Full Court raise a grant of appeal with respect to jurisdiction?

MR BASTEN:   Yes, your Honour, in paragraph 3(a).

GAUDRON J:   Yes, thank you.

MR BASTEN:   We say that the question your Honour identified would not be reached if we were right in relation to the second ground which was the other matter Mr Solicitor referred to, or if it were right, because the court lacked jurisdiction.

GAUDRON J:   Yes, thank you.

MR BASTEN:   In so far as the application before your Honours is concerned, we would of course wish to reserve the right to argue those

points, whether or not they were removed to this Court.  If your Honour pleases.

GAUDRON J:   Thank you, Mr Basten.

MR PAULING:   Your Honours, I have an answer in relation to the grant, I am happy to say.  I am looking at Land Law by Associate Professor Peter Butt, the second edition.  It is at page 92 paragraph 805 and he writes there:

The existence of a number of freehold estates, each entitling its owner to seisin of the land, raised at once the necessity of distinguishing between a livery which would create a life estate and one which would transfer an estate of inheritance such as a fee simple or fee tail.  A simple livery, without more, would at least give the feoffee a life estate, but in the case of an estate greater in quantum the law required that the livery be accompanied by appropriate “words of limitation”.  These were words setting out, or “delimiting”, the boundaries of the estate given.  By a process of formalisation, the words of limitation became stereotyped, and if the exact phraseology demanded by the law for a fee simple or fee tail were not used, the livery of seisin created only a life estate, whatever might have been the intention of the parties.

At common law, it became essential that the words of limitation of an estate in fee simple or in fee tail include the word “heirs”.  In particular, to grant or convey an estate in fee simple to A, the formula “to A and his heirs” had to be used - - -

GUMMOW J:   You did not have to use the word fee simple.

MR PAULING:   Well, it goes on:

no other formula would do,

And he cites authority for that proposition:

Thus, “to A and his heir” -

singular -

or “to A or his heirs” or even “to A in fee simple”, would pass only a life estate to A.

GUMMOW J:   It is not the presence of the word “fee simple”, it is the presence of “heirs”.  Which you have here, have you?

GAUDRON J:   Yes.

MR PAULING:   Yes.  Would you like me to hand that up to your Honours?

GUMMOW J:   No, you have recalled it to us sufficiently, Mr Solicitor.

MR PAULING:   It is my submission, in those circumstances, that there is not any serious doubt that what is intended by this grant, what was affected by this grant, is what his Honour Justice O’Loughlin found it to be, a freehold grant in fee simple.  Would your Honours then wish me to ‑ ‑ ‑ 

GAUDRON J:   I think you should address us on this jurisdictional difficulty that seems to be lurking.

MR PAULING:   It is true that as the application to ‑ ‑ ‑ 

GUMMOW J:   It is a sword the applicant seem to turn on themselves.  There it is.  What is the answer to it?

MR PAULING:   The answer is, I think, one that your Honour Justice Gummow started to give, that you look at the necessary implication of the argument here being put forward, that once any land is the subject of an application for a native title determination and has been accepted by the registrar, the only way in which a legal question concerning that land - let us say an ejectment action or an action in trespass, or anything to do with the validity of the title - could ever be solved is by the native title parties having the matter referred ‑ ‑ ‑ 

GAUDRON J:   Is not the answer perhaps this?  Mr Basten’s clients were seeking discretionary relief and this matter must surely have been relevant to the grant or otherwise of that relief?

MR PAULING:   Yes, and there ought not to be leave to appeal against the exercise of a proper judicial discretion.

GAUDRON J:   Well, wait a moment.  You want the matter removed.

GUMMOW J:   You say it goes to discretion, rather than to the area of jurisdiction.

MR PAULING:   Yes, your Honour, I am happy to adopt that view.  So that, if the only question to be removed into the Court were the question of the extinguishment of native title by the grant of a freehold estate in fee simple, the - - -

GUMMOW J:   You say if that were the issue, one could come along and constitute a suit in an appropriate court of general jurisdiction, to get a declaration to that effect.

MR PAULING:   Yes.

GUMMOW J:   And it might be a good ground for refusing a declaration, that one had to go into this other channel.  But that would not eliminate the existence of the jurisdiction to make the declaration, et cetera.

MR PAULING:   Well, that is right, but the other element of it - - -

GUMMOW J:   And that is what is asked to be removed here, is just this question of common law title and extinguishment.

MR PAULING:   Yes.  I must say that in looking at the matter first up, where there were three grounds of appeal put forward, it was apparent that the freehold question would excite the attention of the Court, the other may, and the discretionary issue should not; that is, that the judge had erred in the exercise of his discretion - - -

GAUDRON J:   No, I think you misunderstand what - - -

GUMMOW J:   You misunderstand what is being put to you.

GAUDRON J:   What is being put to you is this; that although Mr Basten raises a jurisdictional difficulty that is seen to be lurking, in truth it is not a jurisdictional difficulty, it was a matter relevant to the court’s grant of discretionary relief, as sought by Mr Basten.

MR PAULING:   Yes, I follow that.

GUMMOW J:   And that is particularly crystallised when one looks at ground 1 of the removal.

MR PAULING:   Yes, the identified question.  So that, if the Court were minded to only remove the freehold title, we accept that position, and it then becomes a very discrete pure question of law.  I do not know whether your Honours need to hear further from me on that point.

GAUDRON J:   No, I think not, Mr Solicitor.  I think, Mr Basten, you looked as though you wished to say something in respect of the matters that have been discussed with the Solicitor‑General.

MR BASTEN:   If I might, your Honour.  The point which we sought to make in relation to the grant was that it constituted an act which took away from the registered native title claimants a right that they had to have any acquisition or dealing with their land which constituted an acquisition be the subject of a notification under section 29 and a right in them to be heard in relation to that matter by way of the negotiation procedures.  That right, they say, did not depend on the existence or otherwise of native title and they did not seek to establish the existence or otherwise of native title but merely that they were registered native title claimants for the purposes of section 29 of the Act and were therefore native title parties. 

What this Court said in the North Ganalanja Case to the effect that the provisions of the Native Title Act were designed to maintain the status quo, pending the determination of the application, applied and there was therefore good ground for saying that the Territory did not have power to grant other interests in that land whilst the application for determination of native title was pending before the tribunal.  It was on that basis that they sought the relief by way of interlocutory injunction against the grant of any further interests in the land until that application had been dealt with.  So their application did not depend upon establishing native title before ‑ ‑ ‑

GAUDRON J:   But that application was an application for relief which is discretionary. 

MR BASTEN:   I am so sorry.  No, the application to which I refer is the application lodged with the Native Title Registrar under section ‑ ‑ ‑

GAUDRON J:   Yes, but the application to the court was for relief which is discretionary.

MR BASTEN:   That is so, your Honour, but it was ‑ ‑ ‑

GAUDRON J:   And the question of extinguishment or otherwise was relevant to whether discretionary relief should be granted.  Is that not right?

MR BASTEN:   We would say no, your Honour.  Our argument was that it was not relevant, your Honour, because it was not a matter to be taken into account once the registrar had accepted the native title claim ‑ ‑ ‑

GUMMOW J:   Wait a minute, Mr Basten.  Wait a minute, Mr Basten.  Just look at page 18.  Declaration 1(a) in the application was for a

declaration that native title exists.  It would not exist if what the Solicitor says to us is right.  Is that not so?

MR BASTEN:   Your Honour, that was not the relief that was being pursued.  The relief that was being pursued before the Federal Court was the interlocutory relief.

GUMMOW J:   I am just looking at the suit.

MR BASTEN:   It was not suggested that the declaration as to final relief was either sought at that stage nor that it could be established at that stage.

GUMMOW J:   Look, the jurisdiction of the Federal Court is attracted by the application, for goodness sake.  What happens thereafter can take various shapes and forms.  Once it is there, it is there.

MR BASTEN:   That might be a very good reason, your Honour, for the Court to refuse application in the terms of paragraph 1 but the application that was being considered was in terms of paragraph 2 and depended upon the rights which I referred to, your Honour, and not on the existence or otherwise of native title.  There was no evidence before the Court as to the existence of native title.  The only evidence was the evidence put forward by the Territory that it did not exist.  But that was not the declaration which was being sought and the strike out application in relation to the application as a whole sought to strike the matter out even though there remained a native title claim on the register which had been accepted.  That is the sense in which we say that that was not an aspect which was relevant to the relief, discretionary that it was, that his Honour was being asked to give.  Those were the matters in reply, your Honour.

GAUDRON J:   Yes, thank you, Mr Basten.  At this stage, gentlemen, the Court is minded to remove so much of the proceeding as involves the question in ground 1 of the supplementary notice of appeal filed, I think, on 19 May 1998, it being an annexure to the affidavit of RMD Levy sworn on 20 May 1998.  Do you all have the same document so that we know we are talking about the same matter.

MR PAULING:   Yes.

GAUDRON J:   Now that having been said, Mr Burmester, do you wish to renew your application. 

MR BURMESTER:   Yes.

GAUDRON J:   Is there any necessity to renew your application?

MR BURMESTER:   Your Honour, we could leave the question of intervention for the substantive hearing.

GAUDRON J:   Well, we would not be giving you leave, no matter what, for the substantive hearing.  That would be a matter to be raised with the Court when that matter came before it.  We could not give you leave for the substantive hearing.

MR BURMESTER:   Your Honour, on that basis then, given the question was removed, I need say nothing further.  We are happy with that course of action.

GAUDRON J:   Yes.  Now, you might note, however, that if there is some intention to pursue an application at the removed hearing, the question really might, perhaps should be given to the ‑ ‑ ‑

MR BURMESTER:   Yes, your Honour, we will take note of the comments from the Bench today.

GAUDRON J:   Yes, and I think you may take note of the fact that there probably would have been no difficulty at all if it had been the Attorney‑General.

MR BURMESTER:   Yes, your Honour.

GAUDRON J:   Yes.

KIRBY J:   Apart from the traditional role of the Attorney‑General and the courtesies which succeeding Attorneys‑General have displayed to the Court over the century of its existence, is there any, in your submission, constitutional reason why the party should be the Attorney‑General as distinct from the Minister administering the Act that is relevant to the proceedings?

MR BURMESTER:   No, your Honour.  We would say it is open for someone other than the Attorney‑General and my instructions are that when the Special Minister of State sought leave to intervene, he was doing so on behalf of the Commonwealth and ‑ ‑ ‑

KIRBY J:   It may be the problem can go ‑ ‑ ‑

GUMMOW J:   Well, that is the point.

GAUDRON J:   That is the point.

GUMMOW J:   He is not a minister administering an Act.  If he is a minister administering an Act, he applies in that particular position and he is not the Commonwealth.

MR BURMESTER:   Yes, your Honour.

GUMMOW J:   The Attorney‑General is the Commonwealth in the relevant sense and that is the distinction.

MR BURMESTER:   But, in my submission, there would be no reason why, provided a minister applied on behalf of the Commonwealth, some minister other than the Attorney could not represent the Commonwealth, but I will ponder ‑ ‑ ‑

GAUDRON J:   Well, you might.  In that event the intervener would be the Commonwealth.

MR BURMESTER:   Yes, your Honour.

GUMMOW J:   Why take a complicated path when there is an historically sanctified one dating to the days of Sir Robert Garran which is a clear one?

MR BURMESTER:   Yes, your Honour, I know what you say.

GAUDRON J:   Now, gentlemen, in case you have taken too much comfort from what I have said, the removal would only be granted on terms.  They would be on terms that the parties and interveners, if any, are ready to proceed at 10.15 am on 22 June 1998 in Brisbane.  Now, does that cause any difficulty to anyone?

MR PAULING:   Not that I am aware of.  I am in the happy state of being on long service leave, your Honour, so I may as well be in Brisbane as anywhere else.

GAUDRON J:   Well, that having been said, I will announce the orders that will be made.  You have nothing to say?

MR BURMESTER:   No, your Honour, I have nothing to say.

GAUDRON J:   Did you wish to say something about that Mr Basten?

MR BASTEN:   I suppose only this, your Honour, that there is a question of the costs of the matter, it having been removed at the request of the

Territory, and we would ask the Court to consider a condition that they pay the costs of the hearing.  As to the date, I have nothing to say about that.

GAUDRON J:   Well, why should you be any better position than you would be if the matter remained in the Full Court?

MR BASTEN:   Well, it might never come to this Court, your Honour.  It would not be the case that there would be any additional costs.

GAUDRON J:   Did you wish to say anything to the costs application, Mr Pauling?

MR PAULING:  Only that we would oppose the Court making that a condition.

GAUDRON J:   Yes, thank you. 

The order that will be made is that there be removed into this Court so much of the appeal numbered DG3 of 1998 which is pending in the Federal Court of Australia as is comprised in ground 1 of the supplementary notice of appeal filed 20 May 1998.

2. And this is done to obviate any technical difficulties. Pursuant to section 18 of the Judiciary Act 1903, I direct that that ground in the notice of appeal be argued before a Full Bench of this Court.

3.  The removal is made on terms that the parties and interveners be ready to proceed with the hearing at 10.15 am on 22 June 1998 in the Brisbane sittings of the Court.

One day will be set aside for the hearing.  The written submissions of those parties and any who seek leave to intervene supporting an affirmative answer to the ground removed, are to be filed and served on or before 29 May 1998.

Written submissions in response are to be filed and served on or before 10 June 1998.  Any written submissions in reply are to be filed and served on or before 17 June 1998. 

Before the commencement of the hearing, the legal representatives should confer and agree to a division between them of the hearing time.  Costs of the removal will be costs of the cause in this Court - - -

KIRBY J:   Are.....aware of this proceeding?

MR PAULING:   Yes, they are, your Honour.

KIRBY J:   So, we do not really need to say anything.  This is not a matter that would attract 78B of the Judiciary Act.

MR PAULING:   No, it is not.

KIRBY J:   But it is obviously a matter of considerable importance.

MR PAULING:   Yes, I understand only, at this stage, that Western Australia has expressed an interest if the matter were to proceed, that they may seek to make some submission.

GAUDRON J:   Yes.  Otherwise, I think that disposes of today’s matter. The Court will adjourn until 10.15 am tomorrow.

AT 4.37 PM THE MATTER WAS CONCLUDED